National Maritime Authority V. Marine Management Associates Inc. & ANOR (2008)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A.
The plaintiffs claimed against the defendant by an amended writ of summons as well as a statement of claim as follows-
A DECLARATION that the “INSPECTION/VETTING AGREEMENT” made between the Nigerian NATIONAL MARITIME AUTHORITY and the plaintiffs with effect from 1st of March, 1996 for a period of Ten (10) years remains valid binding and enforceable as between the parties thereto.
A DECLARATION that the purported “SUSPENSION” of the contract for vetting/inspection service by the Defendant’s herein -the Nigerian NATIONAL MARITIME Authority by letter dated 10th December, 1999 is ultra vires the said contract and the National Maritime Authority itself, and is thereby invalid, null, void and of no legal effect whatsoever. The sum of US$ 4,875,333.15 (Four Million, Eight Hunred and Seventy Five Thousand, Three Hundred and Thirty Three Dollars Fifteen Cents) or its (Naira equivalent at the prevailing rate) being the financial loss and damage accruing by reason of the Defendant’s breach of the inspection/vetting Agreement, particulars of which are specified in the report of Ajibola Ogunsola & Co. COST, EXPENSES AND LEGAL FEES for the prosecution of this cause in the sum of $500,000.00 (Five Hundred Thousand United States Dollars only EXEMPLARY AND AGORA VATED GENERAL DAMAGES in the sum of Five Million United States Dollars (US$ 5,000,000.00)
At the trial, evidence was adduced by both sides. The plaintiff called two witnesses while the defendants called two. Thereafter addresses of counsel were taken. Learned trial judge accepted the plaintiff’s case by awarding the special damages of US$ 4,298,066.00 and aggravated general damages of US$ 50,000.00.
The defendant was unhappy with the decision and being aggrieved caused a notice of appeal containing eight grounds of appeal to be brought. Consequently briefs of argument were filed and exchanged at the appellant’s brief as well as Respondents’ and Appellant’s Reply briefs of argument.
At the hearing of the appeal, learned counsel for defendant (hereinafter referred to as appellant) adopted and relied on Appellant’s as well as Appellant’s Reply briefs. He, in addition, made oral submissions in elucidation of the briefs.
On the other hand, learned counsel for plaintiffs (hereinafter referred to as respondents) adopted and placed reliance on the Respondents’ brief of argument. She also made oral speech in elaboration of the brief of argument.
The appellant formulated the following 6 issues in its brief of argument.
“3.01 Was the court below right when it awarded the sum of US$ 4,298.066 to Respondents as special damages for their alleged loss of profit whereas the evidence adduced by Respondents and relied upon by the court below was legally inadmissible evidence?
3.02 Can the judgment of the lower court be sustained having regard to the probative value of exhibit “A” upon which respondents built their case?
3.03 Did the Respondents adduce any oral evidence to support their claim for loss of profit for which the court below awarded the sum of US$ 4,298,066.00 to Respondents.
3.04 Was it right for the court below to have relied on exhibit “H” as evidence of Respondents’ lost profit in awarding special damages in the sum of US$ 4,298,066.00 to Respondents?
3.05 Was it right for the court below to award the sum of US$ 50,000.00 to Respondents as “aggravated general damages” arising from Appellant’s breach of contract whereas that Court had earlier awarded the sum of US$ 4,298,066.00 to Respondents being special damages for loss suffered by Respondents as a result of Appellant’s alleged breach of the same contract.
3.06 Is the decision of the lower Court to award US$ 50,000,00 to Respondents as “aggravated general damages” sustainable in law and in fact”
On the other hand, the respondents submitted three issues for consideration and determination in their brief of argument. The issues set out at paragraph 4 of their joint brief of argument are as follows-
“4.01 Whether the trial court properly evaluated exhibit A(Grounds 1 and 2)
4.02 “Whether the claim for financial loss was pleaded in accordance with settled principles of law and practice and whether the evidence on the issue was subjected to proper evaluation (Grounds 3, 4 & 5)
4.03 Whether the award of US$ 50,000.00 aggravated damages was justifiable in the circumstances of this case (Grounds 6 7 & 8)”
It is convenient at this stage, to take respondents’ first issue along with appellant’s second issue.
In this connection, learned counsel for appellant, in the appellant’s brief, contended that it was common ground between the parties that they executed an inspection/vetting agreement between themselves with a commencement date in 1996.
The parties tendered materially different copies – the respondent tendered exhibit A without any specific commencement date whereas the appellant out in evidence exhibit L 1st April, 1996 as the commencement date learned counsel then contended that what was before the trial court was a case in which the respondents assert that exhibit A was the authentic or genuine inspection/vetting agreement between the parties whereas the appellant averred to the authencity of exhibit L.
In that light, learned counsel for appellant further contended that it became instructive for the court below to determine and be satisfied in a manner approved of by law as to which of the two tendered agreements, that is, exhibits A and L was the proper, authentic and genuine one to examine and construe its terms with a view of determining the issue in controversy in this case. Learned senior counsel for appellant then contended that the learned trial judge appreciated this point in her judgment.
Learned senior counsel for appellant contended once more that since it was respondents who were the ones who asserted that the agreement between the parties was for a duration of ten years as contained in exhibit A, it was incumbent upon them to establish by credible and probative evidence that there was a ten year contract that was still extant as at the date on which appellant allegedly breached it.
Learned senior counsel for appellant submitted that the burden of proof on the respondent who asserted positively that exhibit A is the true copy of the agreement between the parties. He referred to the cases of court are bound by the pleadings and will not be allowed to canvass the converse: Adeoye v. Adeoye (1961) All NLR 792.
The principle of natural justice – audi alteram partem requires that not only must both parties be heard but also neither of them is allowed to take the other by surprise by springing startling issue.
The case of Nwanji v. Coastal Services Nigeria Limited (2004) 11 NWLR (Pt 885) 552 seems respectfully pertinent. In that case, plaintiff claimed special damages against the defendant for losses suffered by the plaintiff on account of defendant breach of a contract to transport certain goods from Warri, Port to Abuja. In support of its claim for special damages, the plaintiff led evidence both documentary and oral evidence.
The plaintiff, however, failed to specifically plead the particulars of its claim for special damages as required by law. High Court, Warri acceded to the plaintiffs request and granted the special damages. On appeal to the Court of Appeal, defendant/appellant contended that the plaintiff/respondent having failed or neglected or refused to supply the particulars of the special damages claimed at the trial court in its statement of claim all the oral and documentary evidence adduced by respondent/plaintiff in support of the statement of claim went to no issue and that the evidence was consequently inadmissible and should be expunged. This court rejected his submission.
On further appeal to the Supreme Court, appellant’s/defendant’s submission was upheld. The apex court considered all the evidence adduced inadmissible and expunged them. It further held that the trial court should have dismissed the claim and did dismiss the plaintiff’s respondent’s claim for special damages.
In this connection Uwaifo JSC (supra) at pages 564, 566 – 568 and 590 stated thus-
“The main issue to be determined by the court is, which of the agreements i.e. exhibits A and L is the authentic agreement which ought to have guided the parties to the agreement.”
It is settled by a long line of cases that a party who avers the truth or existence of a fact must prove it. In civil cases, the onus of first proving the existence or otherwise of a fact lies on the party who will fail if no evidence were given on either side. See section 136 of the Evidence Act Cap 112 of the Laws of Federation of Nigeria, 1990. Archibong v. Ita (2004)2 NWLR (Part 858) 590, 619 and Ewo v Ani (2004) 3 NWLR (Pt 861) 610, 636. The burden of proving that there was a ten year contract between the parties herein which was extant as at 10th December, 1999 when appellant wrote to suspend it rested squarely on respondents who asserted its existence. The appellant merely alleged both in its pleadings and evidence, that exhibit A was not authentic or genuine. This is a negative averment which does not require proof.
The plaintiff, in law, unless otherwise directed on the pleadings, has the burden of proving his case. The plaintiffs opened their case by calling first plaintiff witness, who incidentally was a signatory to exhibit A. Captain Samuel Olusumbo Olukayode Olusewe testified as follows
“The MIS which metamorphosed as a result of the joint agreement between the 1st and 2nd plaintiff for the sole purpose of executing the contract between National Maritime Authority and 1st and 2nd plaintiff. The 1st and 2nd plaintiffs negotiated with the National Maritime Authority for the purpose of carrying out inspection of vessels…….
In addition there was a signed contract between the parties and the 1st and 2nd plaintiff and the defendant.”
At page 390, the witness stated thus –
“There is only one contract
And the one I signed i.e. see parties was for 10 years.
The contract is here for everybody to see”
It, therefore, seems that the testimony of the first plaintiff witness, an attesting witness brings this matter within the contemplation of the Supreme Court decisions in Ita v. Dadzie (2000) 4 NWLR (Pt 652) 168, 182; Ojibah v. Ojibah (1991) 5 NWLR (Pt 191) 296, 310 and G. Chitex Industries Ltd v. Oceanic Bank International Nigeria Ltd (supra) 408411 per Musdapher JSC cited in the appellant’s brief of argument. With this testimony, it appears that the wind is taken out of the sail of the appellants.
The learned trial judge seems to prefer his evidence and accepted that exhibit A is the genuine or proper or authentic agreement binding the parties herein hence her reasoning that if the contract were for three year duration there would have been no need for its suspension as at 10th December, 1999 from 1st of April, 1996 which is the date of commencement endorsed on exhibit L. The desperate effort of the appellant to suspend the contract shows that the contract subsisted and was extant after the expiration of three years.
Learned trial judge, in rejecting exhibit L produced by the defendant reasoned as follows-
“Exhibit L was tendered on behalf of the defendant through the D.W 4 the Chief legal officer in the employment of the defendant.
The expiration of the initial term, the contract terminates naturally.
But in the instant case, the defendant wrote exhibit B dated 10/12/99 to the plaintiffs suspending the contract the letter states inter alia as follows:-
“I am directed to inform you that the Vetting/Inspection services that you have been doing on behalf of the Authority is now suspended.
The whole exercise is going to be reviewed by the Authority and when this is completed, the outcome will be communicated to you.”
No reason was given for the suspension of the contract. The question that follows is, does a contract whose tenure had been concluded needed to be suspended? By suspending the contract; in my humble view shows that the tenure of the contract was yet to be completed.
As regards exhibit N i.e. letter written by the Director of Legal Services. Mrs Chijioke to the effect that fundamental term of the Authority, and that a letter of objection was written to the consultants. I have stated in this judgment that the letter of objection was not placed before this court.
Exhibit N, as rightly submitted by the learned counsel for the plaintiffs is a document made at a time when proceedings were pending and it is inadmissible under the provision of Section 91 (3) of the Evidence Act which provides as follows:-
“91 (3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
See the cases of Gwar v. Adole (2003) 3 NWLR (Pt 808) 516 at 531 and Owei v. Ighiwi (2005) 5 NWLR (Pt 917) 184 at 19.”
The substance of the reasoning of the learned trial judge is that if truly Mrs. Chijioke wrote a letter to respondent for such changes, the said letter was crucial to the defence and same was never placed before the court.
That exhibit C which was the original agreement executed by the parties carries alterations in Mrs. Chijioke’s writing which changes are the feature of exhibit L. Thirdly if it is true that the contract entered into was in terms of exhibit L, for a duration of three years there would be no need to suspend it after the expiration of the three year term. Exhibit L was with effect from 1st April 1996. By 10th December, 1999 when it was purportedly suspended it had expired by efflusion of time. There would, therefore, be no live span left to suspend. The act of suspending the agreement betrays the appellant’s panic measure. The only irresistible inference that can be drawn from this desperate measure is that the duration of the contract was running. In other words, exhibit A was subsisting. The agreement binding the relationship between the parties is exhibit A and not exhibit L. Appellant’s issue 2 is answered in the positive. Grounds 1 and 2 of the grounds of appeal from which issue 2 is distilled fail and are dismissed.
Next to be considered is the appellant’s issue 1 which was framed from ground 3 of the grounds of appeal.
In arguing the issue, learned senior counsel stated that respondents claimed US$ 4,875,333.15 as the profit that they would have made from 1996 when the contract was allegedly breached till 2006 when the purported ten year duration of the agreement would have expired if it had been allowed to run its full course. Learned senior counsel submitted that it was well settled by the courts that a claim for loss of profit or loss of earning however described is in the realm of the special damages. He cited the cases of Barau v Cubbits Nigeria Ltd (1990) 5 NWLR (pt 152) 630 Attorney General. Oyo State v Fairlakes Hotels (No 2) (1989) 5 NWLR (Part 121) 255.
Learned counsel for appellant further submitted that it is pretty settled that before plaintiff can make a valid claim for special damages, he must specifically plead particulars of his claim in the statement of claim. Learned senior counsel referred to the case of Fairlakes Hotels (supra) and Barau v Cubbits (Nig) Ltd (supra) and Nwanji v. Coastal Services Nigeria Ltd (004) II NWLR (Pt 885) 552. He urged court to dismiss the claim as the evidence adduced therefore went to no issue.
Learned counsel for respondents, on the other hand, on this issue, rejected appellant’s contention that the respondents failure to specifically plead the particulars of the loss of profit was fatal to the sum awarded by the court below. She contended that the argument was unfounded and untenable. Learned counsel for respondents then proceeded to read paragraphs 18 and 19 of the amended statement of claim and argued that the quantum of loss was expressly pleaded as US$ 4,875,333.15 and the particulars of loss are incorporated into the pleadings by reference. She contended that a document mentioned in a pleading forms part of the pleading as it is incorporated into it by reference. He placed reliance on the Supreme Court decision in Bangue Genevoise de Commerce et de Credit Gia Mar, Di Isola Spetsai Ltd (owners of the Stermship “Spetasi Patriot” (1962) 1 All NLR 565, 572 – which counsel contended was applied in Ehalor v. Idahosa (1992) 2 NWLR (Pt 223,) 323, 334 – 335
After reading from the two authorities cited learned counsel for respondents submitted that the pleading of reliance on the report of Ajibola Ogunsola & Co tantamount to a pleading of the particulars.
Paragraphs 18 and 19 of the statement of claim recited in the respondents’ brief of argument is reproduced immediately hereunder as follows-
“18 The Plaintiff aver that the defendant have by the said breach caused great financial loss and damage to the Plaintiff. The Plaintiffs would at the trial rely on the report of computation of financial loss prepared by the Actural firm of Ajibola Ogunsola & Co
- Where of the Plaintiff claim against the Defendant for X X X X X ‘A9 The sum of US$ 4,875,333.15 (….)(or its equivalent at the prevailing rate) being the financial lass and damage accruing by reason of the defendant’s breach of the Inspection/Vetting Agreement particulars of which are specified in the report of Ajibola Ogunsola & Co”
Clearly the respondents throughout their statement of claim failed to plead fact or facts leading to their claim of the sum of US$ 4,875,333.15. They merely claimed the said sum in their prayer and placed their reliance on the report of Ajibola Ogunsola & Co. Averment of fact or facts in a claim, to my mind, are not the same thing as praying for a relief. There must respectfully be some facts giving rise to the relief or reliefs sought. Every pleading must contain all material facts and only and paragraph 4 pleads that “since the execution of the agreement the relationship between the parties has been governed by that agreement and that its terms had been complied with”, Paragraph 7 repeats that the deed of mortgage has been rescinded and paragraph 12 begins “the Defendants will contend at the trial (a) that the agreement of the 26th October, 1961 is a novation of the mortgage deed of the 22nd July, 1958 and that it has revoked or rescinded or replaced the said mortgage deed.
As the agreement of the 26th October, 1961, was in writing the reference to it makes it part of the pleading: Day v William Hill (Park Lane) (1929) 1 K.B 632 and it was produced in evidence. The essential part of this pleading is the statement in paragraph 4 that since the agreement was entered into the relationship between the parties has been governed by it.
This was enough to make it clear to the plaintiffs that the defendants were relying on the agreement as debarring them from enforcing the mortgage, and in my view it is open to the Court to give the agreement its true legal effects, irrespective of whether the word “novation” is used correctly in paragraph 12 or of whether the mortgage can properly be said to have been revoked” (underlining mine)
In Ehahor v Idahosa (supra) at 334 – 335 this court stated as follows “Special damages are items of loss which the Plaintiff has to particularise in his pleadings to enable him to give evidence thereto and to recover thereon. See Attorney-General, Oyo State v. Fairlakes Hotels (No 2) (1989) 5 NWLR (Pt 121) 255. Further special damages must be strictly proved. See Agunwa v. Onnkwue (1962) 1 All NLR 537; (1962) 2 SCNLR 275 and Basil v Fajebe 1990 6 NWLR (Pt 155) 172. The respondents in paragraph 10 of his amended statement of claim averred as follows-
“In spite of plaintiffs protest to the Ministry of Lands and Surveys, the members of Lawani Street, and the letters from the Area Planning Officer and the Permanent Secretary, Ministry Lands and Surveys, the defendant did not abate the nuisance. By reasons of the matter aforesaid the walls of the plaintiff’s dwelling house have become very damp and are unsound.
The dwelling house has considerably deteriorated in value and the plaintiff has suffered loss and damage assessed at N100,000.00”
It was after the amendment in paragraph II of the aforesaid Amended Statement of claim that he would found on the valuers report prepared by estate surveyors in proof of the special damage at the trial. The claim in paragraph 12(4) of the Amended Statement of claim for N56,429.00 as special damages should be considered in the light of the averments in paragraph 10 and 11 of the Amended Statement of claim.
In the first place, paragraph 10 of the Amended Statement of Claim indicated clearly that the special damages being claimed by the respondent were in relation to the walls of the appellant’s building which had become very damp and unsound.
In my view, paragraph 10 of the Amended Statement of Claim gave sufficient particulars of the basis of the claim for special damages if the appellant wanted more particulars he ought to have demanded for them. After all, the law is that pleading should contain, and contain only, a statement in summary form of the material facts on which a party relies for his claim but not the evidence by which they are to be proved. Further the legal implication of paragraph 11 of the Amended Statement of claim, in which the respondent averred that he would found on the valuer’s report prepared by the estate surveyors in proof of the special damage at the trial, was that the reports become part of the pleading.
This is because a written document referred to in a pleading becomes part of the pleading and it is open to the court to give the document its true legal effect. See the Patriots’ case (1962) 1 All NLR 570″
I have deliberately read the two dicta in extenso to enable me compare the pleadings in the three cases including that of the instant appeal. Clearly there is nothing comparable to paragraph 4 of the statement of claim in the case of Owners of Steamship or Vessel Spetsai Patriot. (Supra) as well as paragraph 10 of the Amended Statement of Claim in Elahor v. Idahosa’s case (supra) in the statement of claim in the present case. The respondents herein as observed earlier in this judgment failed to plead their entitlement to the sum of US$ 4,875,333.15 as was done in paragraph 10 of the Amended Statement of Claim in Elahor v. Idohosa’s case. The respondents, without pleading the bases of their entitlement to the sum, merely proceeded to claim, in paragraph 19 thereof, the said sum of money. This approach respectfully does not put it on all fours with the case of Idahosa (supra).
Most importantly the case Owners of Steamship or Vessel Spetasi Patriot (supra) does not provide that material fact such as particulars of claim should be waived once it is contained in a document which the opposing party might not have access to until it is produced in evidence.
The document accepted in the Owners of Steamship or Vessel Spetasi Patriot (supra) was an agreement between the parties and not expert evidence a party proposed to rely upon. This would probably be prejudicial to the other party. The fundamental purpose of pleadings is to identify as much as possible certainty the various matters in controversy between the parties and those on which they had agreed. Consequently, it is not permissible for any of the parties to raise at the hearing of the case, any issue which has not been raised in the pleadings. The plaintiff is only permitted to call evidence in support of his pleadings and any evidence produced contrary to the pleadings should not be admitted and if admitted through inadvertence the same should be expunged when writing the judgment. Ambrosini v. Tunko 9 NLR 8; Paul v George 4 FSC 198, Ajoke v. Amusa Yusufu Oba & (1962) 1 All NLR 73, Adegbenro v. The Attorney General of the Federation (1962) 1 All NLR 431 and The National Investment & Properties Co. Ltd v The Thomson Organisation Ltd & Ors 1969 NMLR 94.
It is not open to a party to put up an entirely new case at the hearing nor can a judge depart from the case as pleaded by the parties. Both parties and the court are bound by the pleadings and will not be allowed to canvass the converse: Adeoye v. Adeoye (1961) All NLR 792.
The principle of natural justice – audi alteram partem requires that not only must both parties be heard but also neither of them is allowed to take the other by surprise by springing startling issue.The case of Nwanji vs Coastal Services Nigeria Limited (2004) 11 NWLR (Pt 885) 552 seems respectfully pertinent. In that case, plaintiff claimed special damages against the defendant for losses suffered by the plaintiff on account of defendant breach of a contract to transport certain goods from Warri, Port to Abuja. In support of its claim for special damages, the plaintiff led evidence both documentary and oral evidence. The plaintiff, however, failed to specifically plead the particulars of its claim for special damages as required by law. High Court, Warri acceded to the plaintiffs request and granted the special damages. On appeal to the Court of Appeal, defendant/appellant contended that the plaintiff/respondent having failed or neglected or refused to supply the particulars of the special damages claimed at the trial court in its statement of claim all the oral and documentary evidence adduced by respondent/plaintiff in support of the statement of claim went to no issue and that the evidence was consequently inadmissible and should be expunged. This court rejected his submission.
On further appeal to the Supreme Court, appellant’s/defendant’s submission was upheld. The apex court considered all the evidence adduced inadmissible and expunged them. It further held that the trial court should have dismissed the claim and did dismiss the plaintiff’s respondent’s claim for special damages.
In this connection Uwaifo JSC (supra) at pages 564, 566 – 568 and 590 stated thus-
“It is the contention of learned counsel for the appellant, Mr. Odje, that it was wrong to award special damages as claimed by the respondent when they were neither specifically pleaded nor strictly proved. In this respect, the argument is that since parties are bound by their pleadings, evidence adduced, when not based on pleaded facts, go to no issue, and the evidence must be rejected and the case decided on legally admissible evidence……
The appellant contends in respect of costs of goods said to have been lost that the N74,000.00 awarded for missing iron rods and cement cannot be justified since those items were not specifically pleaded and value assigned to each of them. The court below overlooked the fact that there was no specific pleading of the quantity of iron rods and bags of cement allegedly not delivered and the value of each item …….. …. So the question remained whether the judgment on that amount which was claimed as special damages- could be said to be supported by evidence. The law is clear that special damages must be pleaded and proved strictly……….
It is therefore stated that a Plaintiff claiming special damages has an obligation to lead and particularise any item of damages Special damages consists in all items of loss which must be specified by (the plaintiff) before they may be proved and recovery granted.
The respondent had the obligation to state the number of iron rods which he claimed as an item of loss and the price of each in the statement of claim relied all. The same must be done in regard to the bags of cement. The respective prices must be stated and then given in evidence to justify the amount claimed No court can determine this without an averment as to the number of iron rods and bags of cement and the cost of each. In the circumstances therefore, the evidence adduced must be considered inadmissible…………. It is clear to me that on a broad but fundamental perspective, the evidence led in respect of the amount of N74,000.00, N20,000.00 and N10,000.00 are inadmissible having regard to the state of pleadings by the respondent .
Such evidence must be discountenanced as it goes to no issue……… The two courts below had an obligation to expunge the said evidence from the record and decide the case on properly and legally admissible evidence but failed in this regard. This Court is now entitled to do so.”
In his own contribution Belgore, JSC (as he then was) stated at p 571 thereof as follows-
“In our procedure for trying civil matters, the position has always been that all items claimed must be clearly pleaded. In claiming special damages, the pleading must be clear as to what is being claimed…….
All evidence received in respect of matters not pleaded properly amount to illegally admitted evidence and go to no issue It is therefore clear that the two lower courts overlooked the defects in the pleading of the 21 plaintiff and illegally received evidence on matters not properly pleaded.”
The decision of the Court of Appeal in Usman v. Abubakar (2001) 12 NWLR (Pt 728) 685 at 722 – 723 recited in extenso in the appellant’s brief of argument is not binding on this court. It is a dissenting judgment which does not represent the decision of the Court. What binds the Court is its majority decision which was of 2 – 1. The dissenting judgment misconceived the issue in that case. The claim in that case was for destruction of a house.
It is settled that when an action is in negligence, the actual damage must be proved the value of destroyed house or used vehicle or chattel is not item of special damages to be exactly quantified like hospital expenses or loss of profit or earning. It is for the parties to adduce evidence on which the court must endeavor to determine the fairness of the case. Ubani – Ukoma v. Nicol (1962) 1 All NLR 105, 107.
In the light of the authoritative decision of the Supreme Court, its is settled by a long line of cases that items of loss of profit, loss of earnings as in the instant case claimed as special damages must be specifically pleaded in the statement of claim. Special or specific pleadings means no more than the items of claim being particularised. Not only must the special damages be pleaded specifically it must be proved strictly. To succeed the plaintiff has to scale the following two hurdles.
(a) Plaintiff must specifically or expressly plead the particulars of his claim for special damages in his statement of claim; and
(b) must lead evidence in proving the claim for special damages strictly.
The respondent failed, as had been observed in this judgment, to plead the special damages alleged in his case specifically and expressly. To allow the respondents to adduce evidence on material facts contrary to his pleadings is permitting them to make a case different at the trial. The trial court was bound to regard such evidence as not belonging to the issue joined. See George v Dominion Flour Mills Ltd (1965)1 All NLR 71, 78 & 79, George v United Bank for Africa Ltd 1972 8/9 SC 264, Emegokwue v. Okadigbo (1975)4 SC 113. Not only are parties bound by their pleadings, the court of trial is required to confine itself severely to the issues raised by the parties in the pleadings. To act otherwise might well result in denial affair hearing to one or other of the parties. See Roads and African Continental Seaways Ltd v Nigerian Dredging Roads and General Works Ltd (1977) 5 SC 235, 248 NIPC Ltd v. Thompson Organisation & Ors (1969) 1 All NLR 138, Odiase & Anor v. Agho & Ors 1973 II SC 71, 77 where the Supreme Court stated that-
“Indeed we would agree in principle with the general proposition enunciated by Lord Wrenbury in Wilson
Bank v. United Counties Ltd (1920) A.C 102 at page 143. He said: It is certainly a statutory principle that a court of justice should confine itself to adjudicating upon the questions raised by the parties’ litigant to the exclusion of other questions which they do not advance.”
See also statement by the learned authors of Bullen v. Leake on Precedent of Pleadings 12th Edition page 8. It is therefore not open for the trial court to formulate its own case from the evidence adduced before it and then proceed to determine it contrary to the case presented by the parties: Adeniji v. Adeniji (1972) 2 SC 10, 17. It is not permissible to allow a party to testify and contend contrary to his pleadings. Where this is permitted it will tantamount to making a case otherwise than pleaded – See Cardoso v. Executor of Doherty 8 WACA 35, 60 Dr Nwafor Orizu v. Anyaegbunam (1978) 5 SC 21, 66 and permitting them to approbate and reprobate Amida v. Oshobija (1984) 7 SC 66, 80 – 81.
There is substance in the submission of the learned senior counsel for appellant that the testimony of the first and second plaintiff witnesses as well as exhibit H containing evidence of loss of earning or profit which was not particularised should be expunged. The oral and documentary evidence are inadmissible for lack of proper pleadings. It is trite that where matters have been improperly received in evidence in the court below even when no objection has been raised, it is the duty of the appellate court to reject it and decide the case on the legal evidence. It is immaterial that there was no objection to the tendering of the evidence. It is not open to the court or the parties to admit a document which is in no circumstances or way legally admissible. It is settled that parties are bound by their pleadings but if inadmissible evidence is wrongly admitted it is the duty of court while writing its judgment to expunge or discountenance it. Where however it escapes the learned trial judge the appeal court is entitled to discountenance or expunge all the evidence, oral or documentary. See Oseni v. Dawodu (1994) 4 NWLR (Pt. 339) 390, 404; Thompson v Arowolo (2003) 7 NWLR (Pt 818) 163,204 and 205; Unity Life and Five Insurance Co Ltd v. International Bank for West Africa Limited (2001) 15 NWLR (Pt 713) 610,626; Hashidu v. Goje (2003) 15 NWLR (Pt 843) 352, 381; Abdul v. Benue State University (2003) 16 NWLR (Pt 845) 59 cited in the appellant’s brief of argument Jacker v International Cable (1888) 5 T.L.R 13.
The evidence on the loss of earnings or profit, both oral or documentary wrongly admitted by the trial court in the absence of proper pleadings, that is, for failure or neglect to specifically plead the loss of earnings or profit are hereby rejected or expunged. Consequently appellant’s issue 1 is resolved in its favour ground 3 of the grounds of appeal succeed and is allowed. The special damage awarded to the appellant in the sum of US$ 4,298,066.00 is set aside and the claim dismissed.
It is convenient to take issues 5 and 6 together in the interest of justice particularly so when the respondent did not respond to issue 5 which is argued in the alternative. It follows that if issue 5 succeeds the remaining issue, that is, issue 6 would not be looked into.
Learned senior counsel for appellant argued under issue 5 relying on a long line of authorities that in contract the law frowns upon double compensation.
On issue 6, learned senior counsel submitted that award of aggravated damage is unknown to law in the circumstances of this appeal because such damages can only be awarded only in tort and not in contract. He cited the case of Chief F.R.A. Williams v. Daily Times of Nigeria (1990) 1 NWLR (Pt 124) 1, 31 – 32 and Sosan v HFP Engineering (Nig) Ltd (2004) 3 NWLR (Pt 861) 546.
On the facts, learned senior counsel submitted that there was no evidence led in support of the order of the learned trial judge.
Learned counsel for respondent contended that the aggravated or exemplary damages claimed were for injury to credit and reputation arising from exhibits J1 – J3 and the flagrant refusal to retract exhibit it despite the order of court. Learned counsel stated that the award was not one for breach of contract but an award for injury to the respondent’s credit and reputation. She referred to Halsbury Laws of England 31 Edition Vol. 2 paragraph 471 – 2 page 285 and the case of Ilouno & Drs v. Chiekwe (1991) 2 NWLR (Pt 173) 316 per Uwaifo JCA (as he then was). The two issues respectively are formulated from grounds 7; 6 and 8.
The claim in this suit is in the realm of breach of contract. The respondents claimed special damages in the nature of loss of profit which is ascertainable and the learned trial court awarded the sum of US$ 4,298,066.00.
Where the loss of earning suffered by a claimant in breach of contract is ascertainable and has been claimed as special damages and awarded then it is no longer open to that court to award general damages to the said plaintiff for loss suffered by him as a result of the defendant’s breach of the same contract. It seems, therefore, that learned counsel agreed that the plaintiff is not entitled to receive compensation more than once for the same cause of action. Ezeani & Others v. Ejidike (1961) 1 All NLR 402, 405, Kusfa United v. Bawo Construction Ltd (1994) 4 NWLR (Pt 336) 1, Edun v. Provost, Lagos State College of Education (1998) 13 NWLR (Pt 580) 52, 69; Union Bank of Nigeria Ltd v Odusote Book Stores Ltd (1995) 9 NWLR (Pt 421) 558, 586 and Total Nigeria Plc v Markah (2002) 9 NWLR CP 773) 492, 515 cited in the appellant’s brief of argument.
What is in dispute among the parties was whether the aggravated general damages awarded were in respect of a tortuous act or for a breach of contract. Learned counsel are unanimous that an aggravated general damages may be considered and awarded as a result of malevolence on the part of the tort feastor, spite by him or the manner of committing the breach which injured the feeling of the plaintiff. See Chief F.R.A. Williams v. Daily Times of Nigeria Ltd (supra) 31 – 32, Ilouno & others v. Chiekwe pride, aggravated damages may be awarded. The defendant may have acted with malevolence or spite or behaved in a high handed, malicious, insulting or aggressive manner Aggravated damages are designed to compensate the plaintiff for his wounded feelings; they must be distinguished from exemplary damages which are punitive in nature and which may only be awarded in a limited category of cases”
(underlining mine)
The case of Ilouno & Ors v Chiekwe (supra) is a case in tort and the relevant paragraphs of Halsbury Laws of England referred to the court talks about the court taking into account the defendant’s motives, conduct and manner of committing the tort,” It is therefore most unhelpful to the plaintiff other than showing that the Halsbury’s Laws of England is most persuasive and freely considered and applied where applicable in this country. The plaintiff did not make a claim for loss of credit nor injured feeling. In the assessment of measure of damages in contract the measure of damages is the loss directly flowing naturally from the breach and incurred in direct consequence of the breach and not one arising out of conjectures and speculations of a party. In this regard the Supreme Court in the case of Swiss – Nigerian Wood Industries Ltd v Danilo Bogo (1970) 1 A L R 423, 430 – 431 stated thus-
“In the preparation of the claim for, as well as in the consideration of an award in consequence of a breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred in direct consequence of the violation. The damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. In the contemplation of such a loss there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of the contract.
It is only in this connection that damages can be properly described as special in the conception of contractual awards and it must be borne in mind that damages normally recoverable are based on the normal of presumed consequences of the breach complained of Thus the terms ‘general’ and ‘special’ damages are normally inept in the categorization of damages for the purpose of awards in cases of breach of contract. We have had to point out this before……… and we must make the point that apart from damages naturally resulting from the breach no other form of general damages can be contemplated”
See also Gregoire Agbale v National Motors Ltd (1990) 2 A L R 266, 273 on the same subject.
On these authorities, I would unhesitatingly have set aside the award of the aggravated damages of US$ 50,000.00 awarded for hurting the credit of the respondent. Such a measure of damages does not flow naturally from the breach of the contract and could not have arisen from consequences specifically provided for in the contract. It is not a consequence within the foresee ability nor contemplation of the parties. But the award of special damages of US$ 4,298,066.00 having been set aside on account that there was no sufficient or proper pleadings I think the aggravated damages should be allowed to stand. Ubi jus ibi remedium.
There is in existence a valid contract as per exhibit ‘A’ which had been breached by the appellant.
I answer appellant’s issue 6 in the affirmation. Ground 6 and 8 of the grounds of appeal from which it is distilled are allowed. Consequently the appeal partially succeeds appellant’s issue 1 having been answered in the negative and ground 3 from which it was formulated having been allowed.
The decision of the learned trial judge, except the order awarding special damages of US$ 4, 298,066.00, is affirmed. For avoidance of doubt the award of damages of US$ 4,298,066.00 is not affirmed and is, therefore, set aside.
Other Citations: (2008)LCN/2919(CA)
